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May 25, 2013

"Humane Punishment for Seriously Disordered Offenders: Sentencing Departures and Judicial Control Over Conditions of Confinement"

The title of this post is the title of this new paper by E. Lea Johnston now available on SSRN. Here is the abstract:

At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison.  In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing.  In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement.  Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison.

This article argues that judges should possess the authority to tailor the conditions of vulnerable, disordered offenders’ carceral sentences to ensure that sentences are humane, proportionate, and appropriate for serving the intended aims of punishment.  To equalize, at least in part, conditions of confinement for this population, judges should consider ordering timely and periodic mental health evaluations by qualified professionals, disqualifying facilities with insufficient mental health or protective resources, specifying the facility or unit where an offender will serve or begin his sentence, and mandating certain treatment in prison.  Allowing judges to exercise power over correctional conditions in this way will allow judges to fulfill better their institutional function of meting out appropriate, humane, and proportionate punishments, subject prison conditions to public scrutiny and debate, and help reform the image and reality of the criminal justice system for some of society’s most vulnerable individuals.

May 25, 2013 at 10:45 PM | Permalink


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Welcome to the upside down world of the lawyer rent seeker.

"...some of society’s most vulnerable individuals."

These are people who are more dangerous than mob assassins. They kill for no reason, and they kill strangers. Their illnesses make them far more dangerous than paid assassins. Their conditions should get them executed as soon as possible to prevent attacks in prison.

All lawyer invented mitigating factors are aggravating factors in the real world. Why is the lawyer lying so much? These ultra-violent, vicious, homicidal maniacs generate massive government make work jobs.

I demand disclosure by authors such as these of the extend of their dependency on government for their incomes. They are arguing i favor of their economic self interest. Their credibility should be discounted by the fraction of their pay they get from government.

Posted by: Supremacy Claus | May 25, 2013 11:51:12 PM

The refrain of turning the criminal into a "victim" is getting really, really old -- although not as old as pretending that the fellow who belts Granny with a tire iron to get her purse is the one who's "vulnerable." Good grief. It's Granny who's "vulnerable," not that I expect legal academia to either acknowledge or care about this fact.

Posted by: Bill Otis | May 26, 2013 11:32:12 PM

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